1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LAUREN BLACKSTOCK, Case No. 22-cv-07052-JD

8 Plaintiff, ORDER RE ARBITRATION v. 9

10 MARIN LUXURY CARS LLC, et al., Defendants. 11

12 13 Plaintiff Lauren Blackstock sued her former employer, defendant Marin Luxury Cars LLC 14 (Marin), after her employment was terminated in February 2022. Dkt. No. 1. She alleges sex 15 discrimination and pregnancy discrimination under multiple statutes, including California’s Fair 16 Employment and Housing Act (FEHA). Id. Marin asks to send the case to arbitration pursuant to 17 the Federal Arbitration Act and a mandatory arbitration agreement that Blackstock signed at the 18 time of hiring. Dkt. No. 21. Blackstock opposes on the ground that the arbitration agreement is 19 unconscionable. Dkt. No. 27. The agreement is enforceable, and the case is sent to arbitration. 20 BACKGROUND 21 As alleged in the complaint, Blackstock was hired by Marin on August 14, 2020. Dkt. 22 No. 1 ¶ 11. On September 3, 2020, Blackstock received a “stack of ‘on boarding’ documents,” 23 including a two-page “Binding Arbitration Agreement,” which she signed. Id. ¶17. The 24 agreement requires arbitration of “all disputes which may arise out of the employment context,” 25 except it “exclude[s]” from mandatory arbitration “claims brought under the California Private 26 Attorneys’ General Act,

[.]” Dkt. No. 21-1 at 6. The agreement provides 27 that it is “governed by the Federal Arbitration Act … and to the extent not inconsistent with the 1 LEGAL STANDARDS 2 The Court has detailed the standards governing a motion to compel arbitration under the 3 FAA in several prior orders, which are incorporated here. See Louis v. Healthsource Glob. 4 Staffing, Inc., No. 22-cv-02436-JD,

(N.D. Cal. Oct. 3, 2022); Williams v. Eaze 5 Sols., Inc.,

(N.D. Cal. 2019). In pertinent part, the Court’s role under 6 Section 4 of the FAA “‘is limited to determining whether a valid arbitration agreement exists and, 7 if so, whether the agreement encompasses the dispute at issue.’” Cornet v. Twitter, Inc., No. 3:22- 8 cv-06857-JD,

, at *1 (N.D. Cal. Jan. 13, 2023) (quoting Lifescan, Inc. v. Premier 9 Diabetic Servs., Inc.,

(9th Cir. 2004)). “If the party seeking to compel 10 arbitration establishes both factors,” the Court “‘must order the parties to proceed to arbitration 11 only in accordance with the terms of their agreement.’”

(quoting Lifescan,

). 12 The validity and scope of an agreement to arbitrate are determined by the Court unless the parties 13 clearly provide that those questions will be determined by the arbitrator.

at *2 (citing Oracle 14 Am., Inc. v. Myriad Grp. A.G.,

(9th Cir. 2013)). 15 DISCUSSION 16 Blackstock’s sole objection to arbitration is that the agreement is unconscionable. Dkt. 17 No. 27 at 5–6. She acknowledges that she signed the agreement and does not dispute that her 18 claims fall within its scope. The arbitration agreement did not delegate disputes about validity or 19 enforceability to an arbitrator, and so the Court will decide the question of unconscionability. 20 I. UNCONSCIONABILITY 21 To avoid arbitration, Blackstock must establish that the arbitration agreement is both 22 procedurally and substantively unconscionable under California law. See Dkt. No. 21 at 19; Dkt. 23 No. 27 at 11. See also Lim v. TForce Logistics, LLC,

, 1000 (9th Cir. 2021). 24 A. Procedural Unconscionability 25 Blackstock says the agreement is adhesive, and as a result, unfair. Dkt. No. 27 at 11. All 26 arbitration agreements of the sort at issue here will have some degree of procedural concern 27 because they allow for very limited or zero negotiation. See OTO, L.L.C. v. Kho,

, 1 of its provisions were explained to her. Dkt. No. 27-1 (Blackstock Decl.) ¶¶ 10–11. Even so, that 2 would not be enough to derail the agreement here. “[S]imply offering arbitration and other terms 3 on a take-it-or-leave-it basis is not enough to find an agreement to arbitrate unenforceable.” 4 Alonso v. AuPairCare, Inc., No. 3:18-CV-00970-JD,

, at *3 (N.D. Cal. Aug. 23, 5 2018) (citing Sanchez v. Valencia Holding Co., LLC,

(2015)). 6 Blackstock has not shown that the “circumstances of the contract’s formation created such 7 oppression or surprise that closer scrutiny of its overall fairness is required.” Kho,

126. The record does not demonstrate the type of “oppression” or “surprise” that could invalidate 9 the agreement. Unlike the provision in Kho, the Marin agreement was presented in a readable 10 format and in readily comprehensible language. See Quiroz v. ADS-Myers, Inc., No. 20-CV- 11 01755-JD,

, at *5 (N.D. Cal. Sept. 29, 2021). It expressly stated in bold and 12 italics above the signature block: “EMPLOYEE UNDERSTANDS THAT BY AGREEING TO 13 THIS BINDING ARBITRATION PROVISION, BOTH EMPLOYEE AND THE COMPANY 14 GIVE UP OUR RIGHTS TO TRIAL BY JURY.” Dkt. No. 21-1. at 7. Blackstock acknowledges 15 that she “took care to read” the agreement before signing. Dkt. No. 27-1 ¶ 10. In these 16 circumstances, a meaningful degree of procedural unconscionability cannot be found. 17 B. Substantive Unconscionability 18 Even if a high measure of procedural unfairness were present, which is not the case, an 19 agreement will be invalidated only if there is some degree of substantive unconscionability as 20 well. Kho,

; Sanchez,

. That is also missing here. 21 The parties agree that the substantive unconscionability inquiry is governed by the 22 California Supreme Court’s decision in Armendariz. See Dkt. No. 21 at 20; Dkt. No. 27 at 9. 23 There, the court concluded that agreements to arbitrate claims for FEHA violations must meet 24 certain minimum standards of fairness. Armendariz v. Found. Health Psychcare Servs., Inc., 24

, 101–102 (2000). Under Armendariz, an arbitration agreement is “lawful if it (1) 26 provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a 27 written award, (4) provides for all of the types of relief that would otherwise be available in court, 1 expenses as a condition of access to the arbitration forum.” Armendariz, 24 Cal. 4th at 102 2 (quotations and citation omitted). 3 1. Discovery 4 Blackstock says the Marin agreement fails to satisfy factors 2–5 in Armendariz, but the 5 record demonstrates otherwise. To start, Blackstock says the agreement does not provide for 6 sufficient discovery to vindicate her FEHA rights. Dkt. No. 27 at 16. This is an odd argument, 7 because the agreement expressly incorporates “all” of the California Arbitration Act’s “mandatory 8 and permissive rights to discovery,” including “section 1283.05.” Dkt. No. 21-1 (citing Cal. Code 9 Civ. Proc. § 1283.05). Blackstock takes issue with the fact that Section 1283.05 does not 10 guarantee her the right to take any particular number of depositions. Dkt. No. 27 at 16. This 11 oblique attack on the California Arbitration Act is foreclosed by Armendariz itself, which affirms 12 that Section 1283.05 provides “[a]dequate provisions for discovery” for a FEHA claim. 13 Armendariz, 24 Cal. 4th at 105. 14 2. Written Award 15 Blackstock says that because the agreement is governed by the FAA, “the sort of review of 16 an award in a statutory discrimination case, as contemplated by … Armendariz is not possible.” 17 Dkt. No. 27 at 15. Blackstock misreads Armendariz. That case does not hold that agreements to 18 arbitrate FEHA claims must provide for substantive judicial review of an award, in contravention 19 of the FAA; it holds that such agreements may not “preclude[]” an arbitrator from issuing written 20 findings. Armendariz, 24 Cal. 4th at 107. An agreement that is silent about written findings does 21 not preclude them, and it will not be invalidated on that basis. See id. (“[T]o the extent it applies 22 to FEHA claims the agreement must be interpreted to provide for such findings.”). 23 3. Remedies 24 In a similar vein, Blackstock says that the agreement is unconscionable because it is 25 “silent” about the remedies available in the arbitral forum. See Dkt. No. 27 at 15–16. The point is 26 not well taken, mainly because the agreement does not “limit statutorily imposed remedies,” 27 which is all that California law requires. Armendariz, 24 Cal. 4th at 103. 4. Fees/Costs Blackstock takes issue with the agreement’s “‘silen[ce]” about who will be on the hook to pay for arbitration. Dkt. No. 27 at 16. Even so, she acknowledges that California law requires the ° employer to pay arbitration costs when an agreement does not address that issue. Dkt. No. 27 at 16 (citing Little v. Auto Stiegler, Inc.,

(2003)). Because of this default rule, ° “t]he absence of specific provisions on arbitration costs [is not] grounds for denying the ° enforcement of an arbitration agreement.” Armendariz, 24 Cal. 4th at 113. ’ I. PAGA CLAUSE ° Blackstock says in closing that the agreement’s “PAGA waiver” is unconscionable and ° unenforceable. Dkt. No. 27 at 17. See Dkt. No. 28 at 9. The point of this objection is elusive. Blackstock did not allege a PAGA claim. In addition, the agreement expressly provides that PAGA claims are exempted from arbitration. See Dkt. No. 21-1 at 6 (“The only claims excluded from this agreement are ... claims brought under the Private Attorneys’ General Act....”).

S 4 CONCLUSION Blackstock’s claims are ordered to arbitration in accordance with the FAA and the procedures in California Code of Civil Procedure §$§ 1280, et seq. This action is dismissed. IT IS SO ORDERED. 17 Dated: September 12, 2023 Z 18 19 20 JAMES Yy United Pftates District Judge 22 23 24 25 26 27 28